The case against abolitionists

Arguments against triple talaq could end up jeopardising plurality, making Muslim women more vulnerable

Written by Malavika Rajkotia | Updated: June 2, 2017 8:33 am
triple talaq, what is triple talaq, triple talaq law, muslim divorce rules, triple talaq supreme court case, triple talaq in muslims, india news, indian express news Neither the government nor the Law Commission has conducted any survey on the extent of triple talaq among Indian Muslims pronounced in one sitting. (Illustration by C R Sasikumar)

The 19th century jurist, Savigny, said that law evolves through “silently operating powers, not by the arbitrary will of the law giver”. The Constitution is not a hammer to beat people with, but an ideal that allows for steady, organic evolution. While ensuring that popular morality does not castigate minorities, it provides spaces for change. In the context of the triple talaq case, this needs to be underscored. It must not seem that this case is less about gender and more about eroding the identity of a community that defines itself by its religion and culture.

The point is “religion and the Constitution” and not “religion versus the Constitution,” as Pratap Bhanu Mehta has projected in ‘No dark spaces’ (IE, May 18). Religious practice cannot trump constitutional morality, he writes. He forgets that freedom of religion is a part of constitutional morality as contained in Part III of the Constitution. Article 25 guarantees “freedom of conscience and free profession, practice and propagation of religion”.

The triple talaq abolitionists plead erosion of the fundamental right of women to equality since the right to unilaterally revoke a contract leaves her vulnerable. Any husband (of any community) calling for a divorce against the wishes of the wife is painful. However, resistance to divorce by one spouse does not preclude the other from asking for it. If one wants out of the marriage, the other cannot seriously insist on a meaningful continuance of the marriage. To view it any other way implies that a woman is vulnerable without male protection, even if it is dissatisfying.

Women suffer not so much from the divorce as economic disempowerment. Such disempowerment is not rooted in triple talaq, but owes to several other causes which affect not just the lives of Muslim women but those of women belonging to other religions as well. For instance, the Dowry Prohibition Act makes an exception for “customary” gifts. The dowry problem rages on because bridegrooms use this exception clause as the eye of the needle through which they drag their cars and electrical appliances. The thrust of the women’s empowerment process needs to be on economic rights.

Coming to the argument on declaring a personal law “unconstitutional”, the position of the respondents in the triple talaq case is that since the government has not legislated on it, there is no enactment for the court to rule upon. Their argument is drawn from the Bombay High Court’s ruling in the Narasu Appa Mali case, which drew the boundaries of what the court can do, saying that legislation is the realm of Parliament alone. Judiciary will test an enactment on the touchstone of constitutional rights. As a result, all personal law is protected. Hindu personal law that is not codified is similarly protected from a direct challenge in court.

Islam as a practice is legalistic with detailed rules on conduct. The forms of divorce are part of its religious practice. One may not agree with it, but Muslims have a right to practice it. If the community has differences on codes of practice, it will resolve them itself. Muslims also have the right to question being represented by the All India Muslim Personal Law Board. In fact, there is a Muslim women’s board as well.

Mehta’s reference to the Constitution’s 9th Schedule obfuscates the issue since that pertains to enacted law. The reference to the Delhi High Court judgment and the unfortunate analogy of a bull in a china shop has been criticised over the years. Mehta relies on Flavia Agnes’s view on the judgment but during the hearing on the triple talaq case, she supported the anti-abolitionists, stressing the morality of pluralism, which court interference was in danger of eroding.

Islamic personal law emanates from a contractual form of marriage that can be terminated by either party (women have the right of khula). Similarly, Hindu law recognises panchayati divorce and the Hindu Marriage Act protects this custom. The advantage of these procedures is that they do not require a decade-long litigation to persuade a court to deny or allow a divorce.

Economic empowerment of women as the route to an egalitarian society cannot be fixed by the Supreme Court in a single stroke. There is considerable legislation for that. To interfere in the rights of a minority community may make the Muslim woman even more vulnerable because all religions are still in the realm of oppressive patriarchy and it should not seem that Muslim women have been isolated as pawns in a deeper agenda coloured by political interests based on communalism. Justice must be done but it must also seem to be done to Muslim women and their community.

The writer is an advocate and author of ‘Intimacy Undone: Law of Marriage, Divorce and Family in India’

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    carld@usa.com
    Jun 4, 2017 at 5:28 am
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      carld@usa.com
      Jun 4, 2017 at 5:27 am
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      Reply
      1. N
        nayeem
        Jun 3, 2017 at 6:48 am
        All the comments show that commentators are very much concerned about the rights (cons utional/human). But such proponents of rights are never seen expressing concern when poor and unarmed are killed in the name of religious faith. Agreed, triple talaq may be bad practice. Summarily, commentators seems to be hypocrites.
        Reply
        1. T
          ted
          Jun 3, 2017 at 5:17 am
          Preservation of diversity in the matter of divorce for what sake and at whose expense ? The author ought to have asked this question to her conscience before writing the article.
          Reply
          1. S
            Subspan Raman
            Jun 3, 2017 at 4:03 am
            Are people like this actually contributing anything to the debate? They are constantly giving new twists to show how clever they are. End of the day everyone is confused and nothing happens. People like this can even debate if murders and rapes are wrong. What is her twist on underage marriage? IE is a prime case of media fostering stupidity in debates.
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              stranger
              Jun 3, 2017 at 3:20 am
              yes, just like arguments against fascism destroys democracy. real intention of these so called liberals when they tell pluralism, inclusiveness they mean is to destroy and exclude hindus.
              Reply
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                Sunny Cal
                Jun 3, 2017 at 12:43 am
                So, the author also is fine with other Islamic laws such as beheading for blasphemy/apostasy, requiring raped women to produce four pious Muslim male witness; otherwise, the woman stoned to death for adultery?
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                  pankaj
                  Jun 3, 2017 at 1:36 am
                  For the sake of some absurd context of plurality, yes she would like to have those laws as well as others like "kill or convert all kafirs" type of diktat fomr ghazis.. basically for her type of tribal plurality, she would like to have criminals, tribals, civilized people all living together with their own rules/laws and stiking to their own laws and in the event criminals and tribals eliminating the civilized people..--- in other words, sense of purpose or effect is not part of his train of thoughts, you basically stick to some om words and their om definitions like "plurality"
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                    pankaj
                    Jun 3, 2017 at 1:40 am
                    and that is the kind of reasoning they learn in the practice of law, stick to 3-4 words and keep on hammering your statements around them... and ume that judges will respond in same fashion.. you can check other word she used "organic evolution" by which she means elimination of people who follow laws for good society by those who want taliban, but a gradual elimination... you can see this happening in malaysia and just started in indonesia (the best example of muslim world we used to give)... by such laws they give space to mullhas to increase their political power and start radicalising muslims... that is her "organic evolution" of laws.... but sharia laws:-)
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                  pankaj
                  Jun 3, 2017 at 12:23 am
                  Going by authors response, it seems India has too many irrational people who do not have a sense of purpose in anything, very difficult to imagine what kind of society these people want to live in and what they want for their future generations. ---------------------------------------------Plurality?? Did you have any definition of this word before writing about it. ---------------------------Look at the what you know about universe, it is so diverse, but guess what??? it is based on almost uniform laws.. ---Too much for your brain, right?? but that is how you handle and maintain plurality.. If you could have uniform civil laws perhaps across the world, say a UN charter of basic uniform civil laws for divorce, marriage and your rights during such practices, it doesn't bar you from having live in relationships, or your freedom to live in jungle, but it makes your legal rights clear, so if you enter into legal marriage with a person, there is "known" legally binding ways for it
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                    pankaj
                    Jun 3, 2017 at 12:27 am
                    In other words, the contract that you enter is defined irrespective of your religion, caste, even nationality (say at world level).... but you have choice to not to enter that contract if that doesn't work for you... When you want law to help you in your divorce and marriage, when you seek social benefits based on marriage, tax benefits, then law will dictate terms that are important for itself and for society... but not otherwise... hence all civil laws on earth should actually be uniform.... in other words, if you need a law for something make it as uniform as possible and not tribal or arbitrary, you are living a in a amazingly connected world where laws are required, not in jungle... and uniformity of laws is a "requirement" of law in multiple aspects, not just some fancy idea.
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